Miller v. Abbott

March 31, 2009

GEORGE K. MILLER, JR., AND DEBRA MILLER, PLAINTIFFS-APPELLANTS,v.JOHN SCOTT ABBOTT AND JOANNE ABBOTT AND CITY OF MARGATE, DEFENDANTS-RESPONDENTS, AND CITY OF MARGATE ZONING BOARD OF ADJUSTMENT AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-8244-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2009

Before Judges Lisa and Reisner.

Plaintiffs George K. Miller, Jr. and Debra Miller appeal from a trial court order dated August 8, 2008, denying their motion for enforcement of litigants' rights. We remand this matter to the trial court for further consideration under the time of decision rule.

This appeal is but one chapter in a protracted dispute between neighbors over the construction of a deck on property owned by defendants John Scott Abbott and Joanne Abbott. The history is outlined in detail in our opinion deciding a prior appeal in this matter, and need not be repeated here. See Miller v. Abbott, No. A-6661-06 (App. Div. April 30, 2008). In that opinion, we concluded that the Margate Zoning Board of Adjustment erred in granting the Abbotts several variances permitting them to construct a deck that was, among other things, higher than the zoning ordinance permitted. We therefore reversed the trial court's order dismissing plaintiffs' challenge to the Board's decision and remanded with direction that the Abbotts be ordered to modify their deck to conform to the zoning ordinance as it existed at the time of our decision.

Notably, however, our decision specifically indicated that neither the variance application to which our opinion was directed, nor the trial judge's decision concerning those variances, addressed a four-foot section (the "fixed dock") closest to the water's edge, which had previously been the subject of a wharf application. Consequently, our opinion reversing the trial judge's decision and directing modification of defendants' deck did not apply to the fixed dock, because the legality of the fixed dock was not properly before us on the appeal. See Miller v. Abbott, supra, slip op. at 21 n.3.

During the proceedings on remand, plaintiffs contended that defendants' plans to modify the deck were inconsistent with our opinion. In a written opinion dated August 8, 2008, the trial judge correctly ruled that our April 30, 2008 opinion did not address the fixed dock.*fn1 She also concluded that defendants' planned modifications to the deck were sufficient to comply with our opinion.

After the judge issued her August 8, 2008 order, the Margate City Council adopted modifications to the zoning ordinance on September 18, 2008, which according to defendants "appear to negate any necessity of variance relief" for the deck or the fixed dock. Plaintiffs immediately challenged the zoning modifications; at oral argument, counsel advised us that plaintiffs' lawsuit is currently pending before the same judge who issued the August 8, 2008 order. We conclude that the amendment of the zoning ordinances implicates the time of decision rule, described most recently as follows:

Under the time of decision rule, an agency or reviewing court will apply the law in effect at the time of its decision rather than the law in effect when the issues were initially presented. Thus, "[i]n the area of land use, a municipality may change its regulating ordinances after an application has been filed and even after a building permit has been issued and, as long as the applicant has not substantially relied upon the issuance of the building permit, it is subject to the amended ordinance." [Maragliano v. Land Use Bd. of Twp. of Wantage, 403 N.J. Super. 80, 83 (App. Div. 2008)(citations omitted).]

Since the zoning amendments may very well render moot this long-running feud over the deck, we deem it prudent to remand this case to the trial judge for reconsideration under the time of decision rule. We suggest, but do not require, that this matter be consolidated with the pending challenge to the zoning amendments, so that the court can decide in one lawsuit whether the zoning amendments are valid and, if they are, whether they authorize the deck as it is currently constructed. In remanding, we imply no view as to the merits of either of those two issues. We do not retain jurisdiction.

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